What Does Today’s Supreme Court Today’s Ruling Mean for Employment Law?

Only time will tell. However, today’s Supreme Court ruling in Masterpiece Cakeshop widens the right of private business owners to discriminate against LGBT people. On its face, the ruling is narrow: A baker who objects to gay marriage cannot be compelled by a state anti-discrimination law to sell a cake to a gay couple.

“The neutral and respectful consideration to which Phillips was entitled was compromised here,” Justice Kennedy wrote. “The [Colorado] Civil Rights Commission’s treatment of his case has some elements of a clear and impermissible hostility toward the sincere religious beliefs that motivated his objection.”

It’s hard to believe, however, that the Supreme Court chose this case from among 7,000 on appeal to make a point about oppressed bakers. (Look carefully at the photo.)

The main idea behind the majority opinion is to interpret a person’s right of religious freedom to include the right to deny a service to a specific group of people because of religious objections to those people. Rather than predict outcomes, I will briefly lay out some possibilities:

1. Christian affinity groups might see a boost from this ruling. There are employment law cases where companies have set up affinity groups for health and wellness, working moms, and inclusion of minority workers through dialogue and mentoring. When Christian groups have asked employers to recognize them as affinity groups, they have been denied on grounds that a company has not wanted to prefer one faith over another. Those rulings might change now.

2. Perhaps the most disturbing implication of today’s ruling is the elevation of private discrimination in the name of religion. There is a ruling already that recognizes the “Church of the Creator”— an avowedly white supremacist group and beliefs— as a religion. Membership in the Creativity movement is restricted to persons whose genetic heritage is "wholly or predominantly" from Europe or members of the white race, regardless of where they reside.

In Peterson v. Wilmur Communications, Inc., 205 F.Supp.2d 1014 (E.D. Wis. 2002) the court ruled that Peterson’s demotion violated Title VII’s prohibition against religious discrimination, noting that Peterson never acted in a racially motivated manner while he was employed as a supervisor. If you put today’s ruling in place with Wilmur, the Pandora’s box may have opened wider to legalize discrimination beyond LGBT matters in private business settings where a person’s discrimination is dressed up as a religious right.

3. In time, a Democratic Congress and president might enact a law that overrules this decision. That is part of our checks and balances. The first law enacted by Congress during President Obama’s presidency overruled a Supreme Court ruling that denied a woman equal pay to her male counterparts.